Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report? And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE

In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.

But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed?

There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. . . .

Settlement negotiations are never fun. The back and forth and countless rounds of negotiations can cause the process to be drawn-out and downright exhausting.

To make negotiations a little easier, Don Philbin and a team of attorneys and statisticians created Picture It Settled. According to the apps website, ‘the intelligent software has learned negotiation strategy from deep data from negotiation patterns in several thousand litigated cases, ranging from fender benders to intellectual property disputes in locations from tiny counties, large cities and everything in between.’ . . .

It’s been another great quarter of publishing blog articles on A2L’s Litigation Consulting Report Blog. . . . Since we post 2-3 articles every week, I’ve heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I’m listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. . . .

There has been a long, ongoing discussion in our profession about whether paralegals should have a certain level of paralegal education or whether it is sufficient to have experience alone. This article makes a good argument that, one way or another, in-depth education in legal ethics is critical for paralegals and all support staff. This subject deserves, and needs, special attention.

We make the mistake of thinking that lawyers know every nuance to supervising paralegals, and that is not always the case. It is not enough pick up a short review of legal ethics at a CLE seminar. You should be brushing up constantly, just as you would court rules or any other integral part of your job.

This example is one of the most extreme ethical violations I have ever seen by paralegals and attorneys. You cannot make up this stuff. -CCE

Sometimes our lessons come in more bizarre ways than others. As reported by Law360 last week (subscription required), three Florida lawyers were charged by disciplinary authorities over a January 2013 incident involving the firm’s paralegal. The three lawyers were defending defamation claims against their client, who was a local radio talk show host known as ‘Bubba the Love Sponge Clem.’ The plaintiff was another radio personality.

Reports at the time suggested that, on the evening after the media-focused defamation trial started, the defense firm’s paralegal spotted plaintiff’s counsel at a local bar near his home. She contacted lawyers at her firm, returned to the bar with a friend, and sat down next to opposing counsel. Over the next two hours, the paralegal is reported to have lied about where she worked, flirted with opposing counsel and ordered drinks, including buying defense counsel a vodka cocktail and shots of Southern Comfort. She also stayed in touch with the three lawyers from her firm, sending them more than 90 texts and emails over the course of the evening. . . .

There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE

George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.

I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.

The recent WSJ op-ed by John Chambers (CEO Cisco) and Myron Ullman (CEO JCPenny) is interesting, but largely not compelling. What the article does do is indicate that patent lawsuits is the avenue being by non-practicing patent holders and it is pretty clear that manufacturers and retailers would be better off (at least in the short term) without being charged with patent infringement. The core of their argument is here:

A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka non-practicing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.

A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.

The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail. When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem. And, at this point – where the primary complaint is high litigation costs – the solution is not to favor one side or the other, but instead to look for systemic changes that substantially decrease the cost of resolution.

This tip is one of the best ways to use Adobe Acrobat’s Bates-numbering feature. Not to take away from TrialDirector, but you can do this entirely with Adobe Acrobat. It is fast and easy. If you have not tried it, I strongly encourage it. Mr. Brooks’ post will explain why. -CCE

This article is the first in a series entitled ‘Trial Tech Tips.’ Focused on the crossroads of law and technology, and in no particular order, we will share a collection of proven and tested methods for accomplishing a wide variety of common and/or critical tasks encountered during trial preparation or presentation. We will also try to rank them from one to ten on a ‘geek scale,’ with one being not too technical, and 10 being very technical.

On a geek scale of one to ten, this article would be rated at about an 8.

In litigation, it is generally a good idea to make sure that when a certain document is referred to, it is that exact document, and not another version of the same. In situations where there are more than one, and it can be proven, it can result in an interesting trial.

Bates numbering has been around for some time, and is one good method of making sure that everyone is on the same page – literally. Through the years, inked stamps have been used, printed stickers, and nowadays the method most commonly used adds them via software – generally in the lower right corner of each page. Although the most efficient methods can handle a large volume all in one operation, this can also be done at the individual document level.

There are many reasons for adding a Bates number to your exhibits, and there are many for adding yet another Bates number. For instance, if your exhibits have already been numbered according to document productions, it may be helpful to add another set of numbering tied to trial exhibit numbers. This makes it easier for counsel, judges, witnesses and jurors to quickly get to any given exhibit page. Rather than having some lengthy production-based Bates number (e.g., PLTF000024) that may or may not be followed by its next numerical page (PLTF000025) when used in a trial exhibit, we can simply make reference to the trial exhibit and page number (e.g., 0178-002 would be trial exhibit 178, page 2). . . .[Emphasis added.]

I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system. After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there. I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook. While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about. . . .

A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.

The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .

Some great practical ideas for persuasion come from the field of marketing. To be sure, not all apply in legal settings, but marketing offers a laboratory where the practical aspects of human influence can be addressed in a situation that often carries high stakes and measurable results. I recently came across one marketing idea from Roger Dooley’s Neuromarketing blogthat provides a perfect way of explaining and differentiating the various forces at work in any persuasive situation. The idea is called ‘The Persuasion Slide,’ and it starts with the simple physics involved in an ordinary playground slide. Like a good trial metaphor or demonstrative exhibit, the illustration provides a simple and immediately meaningful way to understand a more complex process. . . . .

Until reading this article from the Pittsburgh Post-Gazette, I wasn’t aware that a vehicle has an ‘event data recorder’ akin to an airplane’s ‘black box.’ And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car’s speed at the time of an accident. . . .

Public Meeting Leads to Plan Speeding Hurricane Sandy Litigation, United States Courts Blog

Nearly a year and a half after Super Storm Sandy, New Jersey is seeing another wave. This time, it’s a surge in federal cases involving flood insurance carriers.

‘These cases are hitting our docket very hard,’ said Chief Judge Jerome B. Simandle, New Jersey District Court. ‘We have over 600 Hurricane Sandy cases now and we expect the final number could be as many as 2,000.’

With such a large and growing number of cases, Simandle took the lead. He called a public meeting to hear from homeowners, attorneys and other interested groups. On March 20th, the district’s Board of Judges adopted a plan for management of the Super Storm Sandy litigation, contained in a Standing Order and a 15-page Hurricane Sandy Case Management Order No. 1, which are available on the court’s website. . . .

Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .

“Google mistrials” have been a problem for some time. Here are two examples – one in 2014 and another in 2011 — in which a juror used Internet legal research during the trial and discussed it with fellow jurors, causing a mistrial. -CCE

An emerging problem in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.

Mediation. For some lawyers, it is a great way to spend a day; for others, it is an interminable bore, and ineffective to boot. It is easy to imagine that lawyers who have had successful mediation experiences are more likely to fall into the former category than the latter. What is more certain, however, is that mediation skills are increasingly important for a litigator to have, for a number of reasons. . . .

The widow of an electrician who died in a crane accident at Veolia Energy’s Schuylkill steam plant in Grays Ferry, Pa., will receive $17 million, in what is believed to be the largest wrongful-workplace-death settlement in Philadelphia County history. . . .

Read Mr. Shapiro’s analysis of recent U.S. Supreme Court cases that have created an instruction manual of sorts for reducing litigation risks for American businesses, as stated below in the excerpt to his post.

There is a hyperlink at the end of the article that will take you to the original article. -CCE

Over the past three years, since mid-2010, the Supreme Court has handed down a series of related decisions that, taken together, constitute an instruction manual for American business on how to reduce litigation risk. As the world has ‘flattened’ and trade has increasingly globalized and become borderless, it has been impossible to ignore that only in the U.S. economy is litigation such a prominent line item for business. This is particularly true with regard to class action litigation. No other country has the sort of class—or collective—action rules that the United States does. Perhaps in response to these facts, the Supreme Court has made it clear that through a combination of arbitration (as opposed to litigation) and class action waiver clauses properly used, businesses can contract out from under a great deal of litigation risk for the future and fundamentally change their litigation environment.

The new Supreme Court decisions offer instruction on how, exactly, to use arbitration clauses and class action waivers to mitigate litigation risk.

Please note additional articles on client communication and relations at the end of the article. – CCE

There is no doubt that it’s a litigator’s job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in.

The Myth of the “Litigation Explosion”

A lawyer wears two hats: Advocate, and counselor. As advocate, my duty is to fight for you hard as hell, tooth and nails; to be the knight in shining armor charging into the Valley of Death. As counselor, I must give you the news and help you realistically evaluate your odds so that you can make well-informed decisions regarding basic questions in your case: especially, whether to accept a settlement offer.

Today I recommended — and my client accepted — a settlement agreement that will barely pay her medical bills. Why?

The first reason is that it is hard to understand how a person can be seriously injured in a collision when there is not a lot of visible crash damage to their vehicle. Science does not support the idea that crash damage correlates to injury. In fact, it is established that deaths sometimes…